In a claim being managed by Kennedys, the court orders that a Part 18 request for information must relate to the circumstances of the individual case. Part 18 is not a vehicle to obtain the claims history of a doctor even if there is evidence of similar claims.  

Background

The claim arises out of a knee replacement undertaken on the Claimant (aged 57) in October 2004 by Dr X, a consultant orthopaedic surgeon, employed by the Defendant hospital. It is alleged that the procedure was negligently performed and resulted in post-operative problems and further surgery.

The Claimant made a Part 18 request for disclosure of Dr X’s claims history (including the details of all operations, claims arising and settlement/litigation outcomes). This was considered at a case management conference in July 2011. The Claimant argued that the information was relevant given that Dr X’s factual evidence asserted that he had sufficient expertise and training and that it would be useful information for the court to consider in respect of the likely cause of the Claimant’s ongoing problems.

Defendant’s case

In response to the Claimant’s application, the Defendant contended:

  • Relevance of causation - the causative effect of the clinical treatment provided by Dr X can only be judged by the medical care provided in this case and not through disclosure of Dr X’s claims history. The medical experts must consider in isolation the clinical circumstances of this case - causation is a medical assessment of a particular patient. What occurred in other litigation claims involving Dr X is not relevant in any way.
  • The information being requested does not form part of this case - it is not the court’s role or function to order disclosure of information to undermine the credibility of a factual witness with the mere implication of impropriety. The credibility or otherwise of Dr X is to be determined under cross examination and not through Part 18 disclosure of information which does not relate to this claim (Thorpe v Chief Constable of Greater Manchester [1989]). Part 18 allows the court to order a party to clarify any matter which is in dispute in the proceedings rather than claims information which is not specific to the pleadings.
  • Disclosure of a doctor’s claims history is not fair or appropriate - the court should consider the overriding objective in respect of the information being sought. This includes the parties being placed on an equal footing. This could be extended to ensure that the court does not allow the Claimant to use information which does not go to the clinical issues but instead attempts to undermine Dr X in what would be tantamount to referring to a defendant’s past criminal record in a criminal trial before a verdict has been reached.
  • Relevance of information generally - Dr X is an orthopaedic surgeon who has undertaken various procedures. All information concerning other types of surgery (non knee) would be fundamentally irrelevant to this case.
  • Requirement for specific disclosure - the claims information being sought was to some extent already available. The Claimant’s solicitors had knowledge of other claims involving Dr X which they had been directly involved in.
  • Privilege - the confidential nature of the claims information in terms of patients, treatment, clinical outcomes, settlements and resolutions are privileged. A request for such information being anonymised may not be practical.  

Decision

The Court ordered that the Claimant was not entitled to receive a response to their Part 18 request for information particularly on the grounds of relevance. The claims history of Dr X was therefore not discloseable.

Comment

Defendants and healthcare providers alike should take comfort from this decision. An attempt to seek information that does not directly relate to a claim should not be entertained by the Court. Part 18 is not to be used for any type of ‘fishing expedition’. A request for information must be fair, proportionate and meet the purpose of the CPR, namely to clarify a matter which is in dispute in the proceedings. The claims history of a doctor may be considered as relevant by the claimant as going to propensity. However, disclosure of this history, even if significant in terms of a number of similar claims, should be capable of being resisted.